ORDER
Bedi, J.
1. The petitioners in this case have filed this revision against their conviction under Sections 4 and 5 of the Essential Services Maintenance Ordinance, 1960, pleading that the said Ordinance is ultra vires of the Constitution of India on the grounds that Sections 3 and 4 of the Ordinance which make the cessation of carrying on an occupation or profession in concert or combination am offence, militate against the fundamental right to form associations or unions guaranteed by Article 19(1)(c) of the Constitution, that the Ordinance not being a law in the interests of public order or morality, it is not saved by Article 19(4) of the Constitution, that even if the Ordinance is in the interests of public order, it would be void as public order is an exclusively State subject for legislation, being Item No. 1 in the State List in the 7th Schedule of the Constitution, and that Sections 3 and 4 of the Ordinance are also violative of Article 19(1)(a) of the Constitution as they place a prohibition and not a reasonable restriction on the fundamental right guaranteed by Article 19(1)(g).
It is further pleaded that the said Ordinance. is discriminatory as it discriminates against the employees as a class as against the employers, who are not prohibited from closing down or declaring a lock out, and is hit by Article 14 of the Constitution, and is also in violation of Article 23 of the-Constitution as the prohibition, of cessation of work amounts to forced labour prohibited by Article 23(1) and is not saved by Article 23(2) as this law is not a law for compulsory service for a public purpose and further that there is discrimination between employees as a class and employers as a class. Sections 3 and 4 of the Ordinance are also pleaded to be contrary to the directive principles or State policy and more particularly those contained in Articles 39 and 43 of the Constitution which are fundamental in the governance of the country and it is the duty of the State to apply those principles in making laws. It is urged that for the abovementioned reasons the Ordinance being invalid and inoperative, the accused are entitled to acquittal.
2. In support of his argument, the counsel for the petitioners cited U.P. Shramik Maha Sangh v. State of U.P. , As a number or similar cases are pending in the Courts below and also in this Court and the points raised in this revision are interesting and important and will have a bearing on other cases, I consider that this revision petition be entrusted to a larger Bench so that a. more authoritative pronouncement may be obtained on the points involved. The papers be placed before my Lord, the Chief Justice, for passing proper orders. Notice be issued to the State. The petitioners are released on bail to the satisfaction of the District Magistrate.
JUDGMENT
A.N. Grover, J.
3. The petitioners were convicted under Sections 4 and 5 of the Essential Services Maintenance Ordinance, 1960 (hereinafter to be referred to as the Ordinance). The trial Magistrate sentenced 4hera to rigorous imprisonment for one year and also to a fine of Rs. 200/- each. In default of payment the petitioners were to undergo rigorous imprisonment for a further period of three months. On appeal the learned Sessions judge while maintaining the conviction reduced the sentences to one of three months’ rigorous imprisonment each on each of the counts. The fine was also ordered to be remitted. The petitioners have come up to this Court in revision and tie only point that is being agitated now relates to the validity of the Ordinance generally and Sections 3 and 4 of that Ordinance in particular. The revision petition came up for hearing before a learned Single Judge who was of the view that it should be decided by a larger Bench and that is how that has been placed before us for disposal.
4. The relevant provisions of the Ordinance may first be noticed, According to Section 2(1)(a)(ii), any railway service or any other transport service for the carriage of passengers or goods by land, water or air would tall within the meaning of essential service. Strike is defined by Section 2(1)(b) to mean
the cessation of work by a body of persons employed in any essential service acting in combination or a concerted refusal or a refusal under a common understanding of any number of persons who, are or have been so employed to continue to work or t» accept employment.
Section 3(1) confers power on the Central Government to prohibit strikes in certain employment. It is to the effect that if the Central Government is satisfied that in the public interest it is necessary or expedient so to do it may, by general or special order, prohibit strikes in any essential service specified in the Order. Sub-section (4) of Section 3 lays down that upon the issue of an Order under Sub-section (1) no person employed in any essential service to which the Order relates shall go or remain on strike and any strike declared or commenced, whether before or after the issue of the Order, by persons employed in any such service shall be illegal. Section 4 prescribes the penalty for illegal strikes and according to it, any person who commences a strike which is illegal under the ordinance or goes or remains on, or otherwise takes part in, any such strike shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two hundred rupees, or with both.
Section 5 provides the penalty for instigation or incitement to take part in, or commit acts in furtherance of a strike which is illegal under the Ordinance. The contention on behalf of the petitioners is that according to Article 19(1)(c) of the Constitution all citizens have the right “to form associations or unions”. It is submitted that die prohibition of strikes by any member of any essential service is violative of the aforesaid fundamental right inasmuch as it is well recognised that the primary purpose for farming a particular union is to enable its members to take collective action for safeguarding their own interest and collective bargaining on behalf of the workmen is almost the only and primary function of the trade unions. Strike being the only effective sanction behind collective bargaining, to prohibit it is tantamount to denial of the right of’ collective bargaining which in its turn would render the right to form associations or unions nugatory and illusory.
Our attention was called to a judgment of t learned Single Judge of the Allahabad High Court in , but there the question was whether the proviso to Sub-rule (3) of Rule 40 of the U.P. Industrial Disputes Rules which. enjoins that no federation of unions shall be entitled to apply for approval unless a period of two years has elapsed since its formation is ultra vires of Section 6-I of the U.P. Industrial Disputes Act, 1947, The learned Judge held that the proviso was an unreasonable restriction on the right of the workmen to form an association and was, therefore, ultra vires of Article 19(1)(c) of the Constitution. In Raja Kulkarni v. State of Bombay , the validity of Section 27 of the Industrial Disputes (Appellate Tribunal) Act, 1950, was assailed on the ground that it contravened the right conferred by Article 19(1)(c) because it prohibited the incitement to a strike which was a right guaranteed by the Constitution when it provided for the right to form associations to unions. It was argued that there was no use in forming a trade union if that union was to be prohibited from calling a strake of the workers, when it found that the employers were not amenable to their reasonable demands. The same submission was made, as has been presented to us, that the right to form unions carried with it the right to strike. The learned Bombay Judges regarded the proposition to be arguable but it was observed that even though a strike was recognised to be the most potent weapon which labour had got in order to have better conditions of employment, it could not possibly be said that it had ever been recognised that the right to strike was a fundamental right the abridgment of which would render illegal any act of Legislature which put restrictions upon those rights.
In the United States of America there is no specific guarantee in the Constitution of any right of associations. In 1908 trade unions were held to be illegal being restraints on inter-state commerce, but in 1937 the Supreme Court recognised their legality and the right of the workers to join them since their object was a legitmate one via., the improvement of the conditions of their members as wage-earners. Although “collective bargaining” has been recognised as a fundamental right there but the right to strike because of its more serious impact upon the public interest has been held to exist only subject to regulation by law. The right to strike exists only to the extent that it recognizes the unquestionable right of every worker ‘to quit work’ but it does not extend to resorting to a strike which the Legislate has made illegal or which creates a national emergency Or to engage in a concerted effort to interfere with production which is prohibited by law (viae Basu’s Commentary on the Constitution of India, Vol. I, pages 207-208).
In International Union v. Wisconsin Employment Relations Board (1948) 336 US 245, the majority view was. that the right to strike, because of its more serious impact upon the public interest, was more vulnerable to regulation than the right to organise and select representatives for lawful purposes of collective bargaining which the Supreme Court had characterized as a “fundamental right” and which, as the Court had pointed out, was recognised as such in its decisions long before it was given protection by the Labour Relations Act. As to the right to strike, however, it had been observed in (1948) 336 US 245 at p. 259:
But this recognition of ‘the right to strike’ plainly contemplates a lawful strike, – the exercise of the unquestioned right to quit work, and it did not operate to legalize the sit-down strike, which state law made illegal and state authorities punished.
Even though the primary purpose of forming a trade union is to have collective bargaining, strike being the potent weapon for that purpose it cannot be said that the object of collective bargaining cannot be achieved in any other manner. Trade unions mostly prefer to settle questions by means of negotiations with the employer singly or with their associations or federations or directly with the State. We have not been persuaded either on principle or authority to hold that prohibition of strike in any essential service specified in an order made under the Ordinance would be violative of the right guaranteed by Article 19(1)(c) “to form associations or unions”. There is no inhibition in the Ordinance against formation of the associations or unions by members of the essential services or against collective bargaining by means of peaceful negotiation or means other than that of going on strike. It is not possible to hold that resort to strike forms an integral and indissoluble content of the right to form associations and unions and for that reasons the Ordinance is violative of Article 19(1)(c).
5. The next point that has been urged is that the Ordinance should be struck down under Article 14 of the Constitution as it discriminates against the employees as a class because the employers are not prohibited from closing down or declaring a lock out. This submission which has been made in a half-hearted manner has absolutely no merit in it whatsoever. At least so far as the petitioners are concerned, they belong to the railway service and are Government employees. We have not been shown that any question of declaring a lockout can arise with regard to them.
6. On the merits the learned Counsel for the petitioners has not been able to show that there is any ground for interference with their conviction, but after taking into consideration the entire circumstances, we are of the opinion that although the conviction should be maintained but the sentences should be reduced to the term already undergone. To this extent alone, the petition is allowed.
Mehar Singh, J.
7. I agree.